Opinion
Criminal No. 02-168 (JRT/RLE)
October 17, 2002
John F. Docherty, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, MN, for plaintiff.
Craig Somo Hunter, HUNTER LAW OFFICE, Duluth, MN, for defendant.
MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Anthony Lucca is under indictment for two counts of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Defendant also faces a forfeiture charge. Defendant has requested a Franks hearing, and has filed a motion to suppress evidence; a motion to suppress statements, admissions and answers; and a motion to dismiss the indictment. The government and the defendant filed motions for discovery.
On July 22, 2002, United States Magistrate Judge Raymond L. Erickson issued a Report and Recommendation ("RR"), recommending that defendant's request for a Franks hearing be denied, and that his motions be denied.
The Magistrate granted the government's motion for discovery, and granted, in part, defendant's motion for discovery.
Subsequent to the July 22, 2002 RR, a superceding indictment was returned, adding a count of possession of methamphetamine with intent to distribute. Defendant refiled his original motions without further argument or evidence. In a joint stipulation, the parties agreed that "defendant's Pretrial Motions on the superceding indictment [would] be submitted to the Court on the same record as the defendant's Pretrial Motions on the original indictment and that no hearing on the pretrial motions shall be necessary, subject to the Court ordering a Franks hearing."
The Magistrate Judge issued a second RR, dated September 23, 2002. The Magistrate reiterated his prior rulings, as they were explained in the RR of July 22, 2002. Specifically, this subsequent RR recommended that the defendant's motion to suppress evidence be denied, his motion to suppress statements, admissions, and answers be denied; and his motion to dismiss the indictment because Title 21 U.S.C. § 841(b)(1) is facially unconstitutional be denied.
This matter is before the Court on objections by the defendant to the RR, which he appropriately refiled after the subsequent RR was issued. The Court has conducted a de novo review of these objections pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court adopts the report and recommendation of the Magistrate Judge and denies defendant's objections.
The subsequent RR reiterates the reasoning and recommendations of the first RR, and defendant's objections to the subsequent RR are identical to his objections to the first RR. As such, this Court discusses, and rules on, both RRs and both sets of objections concurrently.
FACTUAL BACKGROUND
The factual findings contained in this background section are preliminary in nature, are confined solely to the motions before the Court and are subject to modification. See United States v. Moore, 936 F.2d 287, 288-89 (6th Cir. 1991); United States v. Prieto-Villa, 910 F.2d 601, 610 (9th Cir. 1990).
Decker's affidavit stated that he was conducting an ongoing investigation of defendant's involvement with controlled substances. Decker noted in his affidavit that a confidential reliable informant ("CRI") informed him that defendant possessed cocaine on or about his person and/or premises. Decker also averred that the CRI had told him that a cocaine transaction had taken place between defendant and Jade Wegner; the date of the alleged cocaine transaction was not included in the affidavit.
The CRI, Decker reported, previously had provided information that led to successful search warrants for three separate premises, and for five individuals. These searches resulted in three successful felony controlled substance convictions, and four additional felony controlled substance cases were pending. Decker had also directed five controlled substances purchases in which the CRI participated.
Decker further stated in his affidavit that he had been involved in a previous search of Wegner's residence, and that cocaine had been discovered there. Decker added that another law enforcement officer, Deputy George Gray, had been conducting surveillance on Wegner. During this surveillance, Gray told Decker that he observed Wegner travel to defendant's residence and remain for about twenty-five minutes. During that twenty-five minute period, Gray noticed that other vehicles made short stops at defendant's residence.
The search of Wegner's residence was pursuant to a search warrant.
Decker also noted that defendant had a prior conviction for the possession of drug paraphernalia, and the sale of marijuana. Decker reported that he and other officers had received numerous reports from CRIs and other sources stating that defendant was distributing controlled substances, including marijuana, methamphetamine, and cocaine. Finally, Decker averred that Captain Robert Byman told him that a CRI reported that defendant possessed and ingested methamphetamine and/or cocaine in his ice fish house throughout the winter months.
Decker testified in front of the Magistrate Judge that at the time he prepared the affidavit, he did not know anything in it to be untrue, and he did not omit any material information. (Transcript "T." at 13).
Transcript refers to the transcript of the motions hearing, held June 24, 2002, the Honorable Raymond L. Erickson presiding, consisting of 32 consecutively numbered pages.
ANALYSIS
I. Defendant's ObjectionsDefendant first objects to the recommended denial of a Franks hearing; he argues that a hearing is required because Decker included deliberately or recklessly false information in his affidavit. He next objects to the Magistrate Judge's finding that probable cause supported the issuance of the warrant. Defendant argues that the warrant application lacks probable cause because it contains no factual basis for the CRI's assertion that he possessed drugs and had done a cocaine deal with Wegner. Defendant's third objection is to the recommended denial of defendant's motion to suppress statements made to law enforcement after the execution of the warrant. Defendant maintains that these statements must be excluded as fruit of the poisonous tree. Finally, defendant claims that 21 U.S.C. § 841(b)(1) is facially unconstitutional, and therefore he objects that the Magistrate Judge failed to dismiss the indictment.
Defendant's objections are addressed below, beginning with the last.
II. Facial Unconstitutionality of 21 U.S.C. § 841(b)(1)
Defendant moves to dismiss the indictment on the basis that 21 U.S.C. § 841(b)(1) is unconstitutional, because it does not require the government to prove as an element of the offense the amount of drugs involved, and that amount affects the range of sentencing. Defendant requests that the drug amounts stated in the indictment be stricken.
Defendant relies on Apprendi v. New Jersey, 530 U.S. 466 (2000), in which the Supreme Court held that the Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 474. However, as the Magistrate noted, defendant's argument that Apprendi renders 21 U.S.C. § 841(b)(1) facially unconstitutional has been rejected time and again by the Eighth Circuit. See United States v. Carter, 294 F.3d 978 (8th Cir. 2002) (reasoning that so long as section 841(b) is implemented in a manner consistent with the requirements of Apprendi, there is no constitutional defect); United States v. Woods, 270 F.3d 728 (8th Cir. 2001), cert. denied, 122 S.Ct. 1342 (2002) (holding section 841(b) is not facially unconstitutional).
These Eighth Circuit decisions are controlling on this Court. As such, defendant's motion to dismiss the indictment due to the facial unconstitutionality of the statute fails, and defendant's objection to the RR on this ground is denied.
III. Denial of Franks Hearing
In Franks v. Delaware, the Supreme Court announced that a court may require an evidentiary hearing where the defendant makes a "substantial preliminary showing" that an affidavit contains deliberate or reckless falsehoods. Franks v. Delaware, 438 U.S. 154, 170-72 (1978); see also United States v. Ryan, 293 F.3d 1059, 1061 (8th Cir. 2002); United States v. Debuse, 289 F.3d 1072, 1075 (8th Cir. 2002). The requirement of a "substantial preliminary showing" is not lightly met. United States v. Wajda, 810 F.2d 754, 759 (8th Cir. 1987). The defendant's attack "must be more than conclusory, must be supported by more than a mere desire to cross-examine" and must be accompanied by an offer of proof. Franks, 438 U.S. at 171. Finally, even if these requirements are met and the false information is set to one side, a hearing is not required if "there remains sufficient content in the warrant affidavit to support a finding of probable cause." Id. at 172; see also United States v. Ozar, 50 F.3d 1440, 1446 (8th Cir. 1995); United States v. Cook, 936 F.2d 1012, 1014 (8th Cir. 1991).
Defendant's primary argument is that Decker's testimony at the motions hearing was so inconsistent as to raise a substantial question of deliberate falsehood. Defendant, however, misconstrues Decker's testimony to reach this conclusion.
Defendant argued that Decker contradicted himself at the motions hearing about the timing of his conversations with Captain Byman and the CRI. Defendant asks,
"How could Decker believe he had talked with Byman about including CRI information on a drug deal between Lucca and Wegner in the Wegner warrant application and yet believe until the day of the hearing in the present case that the Wegner warrant had already been issued before he obtained the CRI information?"
Defendant argues that because information about the alleged drug buy between defendant and Wegner was contained in the application for the search warrant for defendant's residence, but was not in the application for the search warrant for Wegner's residence, Decker must have been lying about one or the other, or Decker simply made up the CRI in order to obtain the warrant.
Decker's testimony, however, is not necessarily inconsistent. If the Wegner warrant had been assembled a week prior to May 6, the inconsistencies defendant complains of are easily explained. The Magistrate Judge found, as this Court's review of the record confirms, that defendant has failed to show that Decker's testimony is necessarily inconsistent with the averments in the Wegner search warrant.
The following chronology helps explain the Magistrate Judge's, and this Court's, interpretation of Decker's testimony: (1) The preparation by Byman of a warrant application for the Wegner residence (about a week before May 6, T. at 24); (2) the receipt by Decker of information from the CRI to the effect that drugs could be found at defendant's house (sometime between May 4 and 6, T. at 21, 22); (3) the presentation of Byman's warrant to a state court (May 5, defendant's supplemental affidavit at 5); and (4) the date that warrant was executed (May 6, T at 23). As the Magistrate noted, Decker was simply mistaken, until the day of the hearing, that the issue date and the drafting date of the Wegner warrant application were not the same. Once this fact is taken into account, Decker's testimony is consistent. Because the affidavit can be interpreted in a manner consistent with Decker's interpretation, defendant has not satisfied his burden of making a substantial preliminary showing that the affidavit contains a material and deliberately false misstatement by the affiant. See United States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir. 1993).
Defendant also argues that a Franks hearing is necessary due to statements in the warrant application regarding defendant's fish house, and the statement that, while Wegner was at defendant's home, several other vehicles stopped by. Defendant has not demonstrated that either of these statements is materially false. As to the fish house, it was not the ownership of the fish house, but the fact that defendant was reported to be possessing and/or consuming narcotics in a fish house that is material. Defendant persuasively argues that his fish house was not on the lake during the winter in question. However, as Decker explained, Byman had apparently heard that Decker was in "a" (as opposed to "his") fish house. (T. at 11-12). This minor inconsistency does not require a Franks hearing, especially when defendant admitted to ice fishing at an area about a mile from his house. (T. at 14). See United States v. Searcy, 181 F.3d 975, 980 (8th Cir. 1999) (holding that minor errors that do not reflect deliberate falsehoods are not enough to undermine a warrant and mandate suppression under Franks).
Defendant also disputes the number of vehicles that stopped by defendant's house when Wegner was there. Defendant submitted an affidavit admitting that Wegner visited his home on a date near April 30, 2002, but denying that several other vehicles stopped by. Defendant, however, has produced no evidence that Decker knew the information was false, or recklessly disregarded the truth or falsity of the information. Franks does not require that every fact in the warrant affidavit be true, only that the affiant believes or appropriately accepts the information to be true. Franks, 438 U.S. at 154. Here, Decker testified that he received the information from another law enforcement officer whom Decker knew to be a reliable and trustworthy source. Defendant has not shown by a preponderance of the evidence that Decker "must have entertained serious doubts as to the truth of his statements or had obvious reason to doubt the accuracy of the information he reported." United States v. Clapp, 46 F.3d 795, 801 n. 6 (8th Cir. 1995).
Defendant has failed to demonstrate an intentional or reckless omission that would require a Franks hearing. Defendant's request for a Franks hearing is thus denied.
IV. Probable Cause for the Warrant
Probable cause is determined by a flexible "totality of the circumstances" test. Illinois v. Gates, 462 U.S. 213, 232 (1983) (probable cause analysis not readily reduced to a neat set of legal rules). "Probable cause exists when there are sufficient facts to justify the belief by a prudent person that contraband or evidence of a crime will be found." United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995). This Court reviews an initial determination of probable cause with deference to determine if the record presented the issuing Judicial Officer with an adequate basis for concluding that there was probable cause to issue the warrant. See United States v. Hartje, 251 F.3d 771, 774 (8th Cir. 2001).
Defendant argues that because the application for the search warrant did not reveal the bases for the CRI's knowledge, it cannot be found to have the requisite probable cause. The lack of a basis for a CRI's knowledge, however, is not fatal. "An informant's basis of knowledge [is] an important consideration, but not a rigid requirement, in the probable cause determination." United States v. Olson, 21 F.3d 847, 850 (8th Cir. 1995) (citing United States v. Anderson, 933 F.2d 612, 615 (8th Cir. 1991)). The Eighth Circuit has specifically held that "[i]nformation may be sufficiently reliable to support a probable cause finding if the person providing the information has a track record of supplying reliable information." United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993).
Here, the CRI's substantial track record of providing law enforcement with reliable information overcomes the absence of the CRI's basis of knowledge. Decker averred that the CRI had provided the "sole information" that led to the issuance of search warrants for three separate premises and for five individuals. As a result of those warrants, prosecutors obtained three felony controlled substances convictions, and four additional felony controlled substances cases were pending at the time of the indictment. The CRI's reliability is further bolstered by the fact that he had been involved in five controlled substances purchases under Decker's direction. Defendant has not given the Court substantial reason to doubt Decker's veracity and Decker specifically testified that the CRI existed. (T. at 14.)
V. Motion to Suppress
The defendant's motion to suppress his statement is derivative of his motion to suppress the search warrant. (Transcript "T." at 7). See United States v. Wong Sun, 371 U.S. 471, 487 (1963). Because the Court finds that the warrant was valid, defendant's statements to law enforcement were not the fruit of the poisonous tree. Therefore defendant's motion to suppress his statements is denied.
ORDER
Based on the foregoing, the submissions of the parties, and all of the files, records, and proceedings herein, the Court OVERRULES the defendant's objections [Docket Nos. 26, 46] and ADOPTS the Report and Recommendation of the Magistrate Judge [Docket Nos. 23, 45]. Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's motion to suppress statements, admissions and answers [Docket Nos. 13, 36] is DENIED.
2. Defendant's motion to suppress evidence obtained as a result of the search and seizure [Docket Nos. 12, 35] is DENIED.
3. Defendant's motion to dismiss the indictment as being brought under a facially unconstitutional statute and strike the drug amount stated in the indictment [Docket Nos. 15, 38] is DENIED.